No. 18-1195

IN THE

___________

KENDRA ESPINOZA, ET AL.,

PETITIONERS,

V.

MONTANA DEPARTMENT OF REVENUE, ET AL., RESPONDENTS.

On Writ of Certiorari to the

Supreme Court of Montana

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE SUPPORTING PETITIONERS

__________

September 17, 2019

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

i

QUESTION PRESENTED

Whether Art. X, § 6 of the Montana Constitution,

as applied by the Supreme Court of Montana to Mon-

tana’s Tax Credit Program for donations to scholar-

ship funds for private education, is consistent with the

First Amendment religion clauses and the Equal Pro-

tection Clause.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY

OF ARGUMENT .................................................... 1

ARGUMENT ................................................................ 4

I. AS APPLIED BY THE MONTANA

SUPREME COURT, ART. X, § 6 OF THE

MONTANA CONSTITUTION VIOLATES

THE U.S. CONSTITUTION .................................. 4

A. The Tax Credit Program Is Not Prohibited

by the Establishment Clause............................ 6

B. Montana’s Denial of Tax Credit Benefits

Falls Outside the “Play in the Joints”

Between the Free Exercise and Equal

Protection Clauses ............................................ 8

II. CHOICE PROGRAMS ALLEVIATE, NOT

EXACERBATE, RELIGIOUS CONFLICTS ....... 12

CONCLUSION .......................................................... 17

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) .................................................. 2

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) ............ 12

Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) ............. 7

Cty. of Allegheny v. ACLU, 492 U.S. 573 (1989) ... 5, 11

Edwards v. Aguillard, 482 U.S. 578 (1987) ... 13-14, 16

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) ............................................ 1, 8, 13

Gloucester County School Board v. G.G.,

137 S. Ct. 1239 (2017) (No. 16-273) ....................... 15

Kitzmiller v. Dover Area School Dist.,

400 F. Supp. 2d 707 (M.D. Pa. 2005) ..................... 16

Locke v. Davey, 540 U.S. 712 (2004) ................. 5, 9, 11

McDaniel v. Paty, 435 U.S. 618 (1978) ....................... 6

Mueller v. Allen, 463 U.S. 388 (1983) ......................... 8

Norwood v. Harrison, 413 U.S. 455 (1973) ................. 7

Sherbert v. Vernor, 374 U.S. 398 (1963) ..................... 3

Trinity Lutheran Church v. Comer,

137 S. Ct. 2012 (2017) .................................... passim

Walz v. Tax Com. of N.Y., 397 U.S. 664 (1970)....... 4, 9

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ........................................ 7, 8, 17

Constitutional Provisions

Mont. Const. art. X, § 6.......................................passim

iv

Other Authorities

Associated Press, “ACLU Protests High School

Choirs Singing In Church Concert,”

Dec. 5, 2013, https://cbsloc.al/2uXRx6f .................. 17

Associated Press, “Montana Third-Grader’s Field

Trip to Creationist Museum Canceled over

Legal Concerns,” Casper Star-Tribune,

May 27, 2015, https://bit.ly/2D76tDS .................... 17

Austin Ruse, “Horrific Sex Ed Curriculum Is

Taking Over in This Virginia County, and

Objectors Are Getting Steamrolled,”

The Daily Signal, Feb. 15, 2018,

https://dailysign.al/2IrSVpQ .................................. 14

Barry Amundson, “ACLU: Bill Requiring North

Dakota Schools to Offer Bible Course ‘Blatantly

Unconstitutional,'” Grand Forks Herald,

Jan. 9, 2019, https://bit.ly/2UsVBuC ..................... 16

Brittani Howell, “R-BB Superintendent’s Prayer

Letter Raises Concerns,” Hoosier Times Online,

Feb. 6, 2019, https://bit.ly/2IeyNs2 .................. 15-16

Cato Inst., Public Schooling Battle Map,

https://www.cato.org/education-fight-map ............ 16

Charles L. Glenn, Jr., Contrasting Models of State

and School: A Comparative Historical Study of

Parental Choice and State Control (2011) ........ 16-17

Charles L. Glenn, Jr., The Myth of the Common

School (1987) .......................................................... 15

Dave Perozek, “’In God We Trust’ Signs Going Up

in Schools,” Arkansas Democrat and Gazette,

Mar. 4, 2018, https://bit.ly/2IsqGaH ...................... 16

v

David Skinner, “A Battle Over Books,” Humanities,

Sept./Oct. 2010, https://bit.ly/2G7UgPN .............. 15

Gregory A. Smith, “A Growing Share of Americans

Say It’s Not Necessary to Believe in God to Be

Moral,” Pew Research Center, Oct. 16, 2017,

https://pewrsr.ch/2TXILQ0 .................................... 13

Joan Frawley Desmond, “Sex Education in

California Sparks Culture Clash,” Nat’l Catholic

Register, Apr. 28, 2017, https://bit.ly/2X2MehW .. 14

John W. Meyer, David Tyack, Joane Nagel & Audri

Gordon, “Public Education as Nation-Building in

America: Enrollments and Bureaucratization in

the American States: 1870-1930,”

85 Am. J. Soc. 591 (1979) ....................................... 13

Life and Works of Horace Mann (Mary Mann,

ed.,1868) ............................................................ 14-15

Neal McCluskey, “Toward Conceptual and

Concrete Understanding of the Impossibility

of Religiously Neutral Public Schooling,”

12 J. Sch. Choice 477 (2018) .................................. 12

R. Freeman Butts, The American Tradition in

Religious Education (1950) ...................................... 9

Robert Maranto & Dirk C. van Raemdonck,

“Letting Religion and Education Overlap,”

Wall St. J., January 8, 2015 .................................. 17

Rousas John Rushdoony, The Messianic Character

of American Education 315 (1963) ........................ 13

State of America’s Libraries 2019, Am. Library

Ass’n, (Mar. 24, 2019), https://bit.ly/2GcYcA3 ...... 14

vi

Susan Parker, “Yoga and ‘Unholy Spirit’? School

Program Draws Christians’ Ire,” Delmarva

Now, Apr. 27, 2018, https://bit.ly/2UbhA4b .......... 16

Thom Bridge, “ACLU Sues to Block Ballot

Initiative on Transgender Bathroom, Locker

Room Use,” Missoulian, Oct. 17, 2017,

https://bit.ly/2G7po21 ............................................. 16

Vincent P. Lannie and Bernard C. Diethorn,

“For the Honor and the Glory of God:

The Philadelphia Bible Riots of 1840,”

8 Hist. of Educ. Q. 44 (1968) .................................. 15

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan think tank ded-

icated to individual liberty, free markets, and limited

government. Cato’s Robert A. Levy Center for Consti-

tutional Studies promotes the principles of constitu-

tionalism that are the foundation of liberty. To those

ends, Cato conducts conferences and publishes books,

studies, and the annual Cato Supreme Court Review.

This case concerns Cato because the First Amend-

ment’s religion clauses together protect the freedom of

conscience, an essential aspect of a free society.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Free Exercise Clause protects religious observ-

ers from unequal treatment where that inequality is

based solely on a person or organization’s religious sta-

tus. Trinity Lutheran Church v. Comer, 137 S. Ct. 2012

(2017). Such protections extend to exclusions from

public programs on the basis of religious faith or prac-

tice. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1

(1947). Likewise, the Establishment Clause requires

that the government not “handicap religions.” Id. at

18. While a government may prefer to “skat[e] as far

as possible from religious establishment concerns,” it

cannot do so by discriminating against religion. Trin-

ity Lutheran, 137 S. Ct. at 2024.

Montana created a program (the Tax Credit Pro-

gram) to promote freedom in education by giving tax

1 Rule 37 statement: Both parties issued blanket consents to

the filing of amicus briefs. No party’s counsel authored any of this

brief; amicus alone funded its preparation and submission.

2

credits to people who donated to school scholarship or-

ganizations. The scholarship organizations then use

those donations to fund both religious and secular pri-

vate schools. Article X, § 6 of Montana’s constitution—

the state’s Blaine Amendment, a provision that many

states passed in the late 19th century during a rash of

anti-Catholic sentiment—forbids the appropriation or

expenditure of any public funds, directly or indirectly,

for “sectarian” (that is, religious) purposes. But a tax-

credit program is not a public expenditure. It merely

allows taxpayers to keep more of their own money and

gives them incentive to spend it in certain ways. Ariz.

Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144

(2011). Moreover, tax credits do not go to schools or

scholarship organizations, but to the donors them-

selves. Ignoring these facts, the state Department of

Revenue relied on § 6 to exclude from the program do-

nors to organizations that fund religious schools.

The Montana Supreme Court struck down the Tax

Credit Program on the grounds that the private dona-

tions amounted to public expenditures aiding religious

schools, in violation of § 6. That decision is troubling

in two ways. First, the court dismissed summarily any

First Amendment implications by invoking the “inter-

play between the joints” between the Free Exercise

and Establishment Clauses. Second, it eliminated the

entire program instead of evaluating the constitution-

ality of § 6’s discriminatory burdens on religion.

The First Amendment’s Free Exercise Clause is im-

plicated whenever the government imposes an undue

burden on the free exercise of religion. Sherbert v. Ver-

nor, 374 U.S. 398 (1963). Denying neutral, publicly

available benefits based on religious status imposes

just such a burden. Trinity Lutheran, 137 S. Ct. at

3

2025. To deny religious schools, students, and parents

the freedom to benefit from a facially neutral, volun-

tary donation is a violation of this neutrality principle.

Montana’s Blaine Amendment also violates the Es-

tablishment Clause when it disfavors religious indi-

viduals and organizations. Such distinctions fly in the

face of the constitutional principle that government

must legislate in a way that does not impair religion.

States surely violate that principle when they exclude

people from government programs on the basis of their

faith. This Court has repeatedly held that states must

not be hostile to faith in that way, but the Montana

Supreme Court’s decision ignores that directive.

The Court should also recognize that school choice

programs allow parents to select schools that share

their values, reducing the need to impose those values

on others. In doing so, they improve our nation’s social

and political cohesion and reduce conflict. Blaine

Amendments stoke the flames of ideological conflict

that currently threaten to engulf public education. On

the other hand, initiatives like the Tax Credit Program

work to rectify a deep structural unfairness in which

devout parents pay twice, once for the secular public

education made available through their tax dollars,

and again for the parochial education their consciences

demand. School choice programs are highly beneficial

for parents, students, and our society as a whole.

This case presents a clear opportunity for this

Court to guide states in the proper application of the

First Amendment’s religion clauses. The oft-invoked

“interplay between the joints” does not extend so far as

to allow states to gut the Free Exercise Clause in the

guise of strengthening the Establishment Clause.

4

ARGUMENT

I. AS APPLIED BY THE MONTANA SUPREME

COURT, ART. X, § 6 OF THE MONTANA

CONSTITUTION VIOLATES THE U.S.

CONSTITUTION

The First Amendment’s Religion Clauses represent

a unifying principle of religious neutrality that exerts

competing pressures on courts as they evaluate the

legislative balance-beam routine that states must per-

form to avoid both excessive entanglement with and

disapprobation of religion. While this Court has never

found the government’s footing to be so narrow as to

constitutionalize the entire field of relations between

church and state, it has never been hesitant to offer

correction when states fall on the side of either estab-

lishment or burdens on free exercise.

Since Walz v. Tax Comm. of N.Y., 397 U.S. 664

(1970), the space for permissible state action between

the Establishment and Free Exercise Clauses has been

referred to as the “play in the joints,” and discrete lines

of precedent chart its borders with either prohibited

domain. At the establishment frontier a watchword

has been “endorsement,” the overriding imperative be-

ing that government must avoid even the appearance

of unequal citizenship between those who do and do

not adhere to a favored religion. Cty. of Allegheny v.

ACLU, 492 U.S. 573, 578 (1989). At the free-exercise

frontier, as described in Trinity Lutheran, 137 S. Ct. at

2023, the boundary sits between what an organization

does and what an organization is. States may not deny

religious organizations generally available benefits

just because those groups are religious, but only when

it is necessary to avoid direct aid to a pastoral function.

5

Montana’s Blaine Amendment can generate three

results. First, when it serves to forestall any expendi-

ture constituting an establishment—something

equally disallowed under the First Amendment—it is

perfectly benign and serves as a valuable restatement

of federal constitutional principles. The Tax Credit

Program is not such an expenditure.

Second, if § 6 simply mandates a maximalist posi-

tion within the “play in the joints,” it represents a le-

gitimate and permissible balancing of concerns in pur-

suit of state neutrality. Were this case to involve the

training of the clergy, as in Locke v. Davey, 540 U.S.

712 (2004), or other forms of state subsidization of doc-

trinal religious education and devotional practices, § 6

could block such a program even if that result is not

required by the U.S. Constitution. Whatever interest

the state might have in ministers, their purpose, un-

ambiguously, is to evangelize. Just as Montana would

be free to fund these endeavors for the secular pur-

poses of aiding her citizens’ educational aspirations,

the state is equally free to decide that the risked infer-

ence of establishment would be too great.

Third, it is only when § 6 creates invidious distinc-

tions between secular and religious actors that it runs

afoul of the Free Exercise Clause. Hard-on-their-luck

preachers may not be excluded from public soup kitch-

ens, nor their children barred from public schools. See

McDaniel v. Paty, 435 U.S. 618 (1978) (pastors could

not be barred from service in the state legislature). The

question here is whether such discrimination exists

when a tax-credit program is struck down merely be-

cause it leads to private funds being directed by tax-

payers to facilitate attendance at religiously affiliated

6

schools. Such a neutral-funding program neither re-

sembles Locke’s direct support of devotional education,

nor violates the Establishment Clause.

A. The Tax Credit Program Is Not Prohibited

by the Establishment Clause

The Montana legislature was free under the Estab-

lishment Clause to offer generally available subsidies

to religious education. “[O]ur constitutional scheme

leaves room for . . . cautiously delineated secular gov-

ernmental assistance to religious schools” so long as

indirect benefits do not entangle government with a

religious mission. Norwood v. Harrison, 413 U.S. 455,

470 (1973); Br. in Opp’n at 33.

In evaluating a potential “entanglement,” the

Court has found that “[t]here is a crucial difference be-

tween government speech endorsing religion, which

the Establishment Clause forbids, and private speech

endorsing religion, which the Free Speech and Free

Exercise Clauses protect.” Bd. of Educ. v. Mergens, 496

U.S. 226, 250 (1990). In this regard, the Court’s “juris-

prudence with respect to true private choice programs

has remained consistent and unbroken.” Zelman v.

Simmons-Harris, 536 U.S. 639, 649 (2002). A reli-

giously neutral school-choice program based on private

choice does not run afoul of the Establishment Clause.

Id. at 652–53. This Court’s analysis should not be colored by an

economic understanding of tax credits that character-

izes incentives as government expenditures. The pri-

mary concern is a “message that religion or a particu-

lar religious belief is favored or preferred.” Mergens,

496 U.S at 250. Unlike cases where states were pro-

hibited from directly compensating the cost of non-

public education, the Tax Credit Program requires no

7

payment out of the public treasury to any party—Mon-

tana’s tax credits are non-refundable—nor any form of

aid which might give the appearance of a government

imprimatur. When assessing private-choice programs

the Court has “found it irrelevant to the constitutional

inquiry that the vast majority of beneficiaries were

parents of children in religious schools.” Zelman, 536

U.S at 650. Instead, taxpayers have been allowed to

keep their own money, which they have freely directed

to support educational choice, a distinction which is

equally important when considering the “play in the

joints” in relation to free exercise.

That the Establishment Clause requires a stance of

government neutrality toward religious schools rather

than strict separation was made clear in Everson,

where the court highlighted the gross financial inequi-

ties such a system would bring down upon observant

parents. “There is even a possibility that some of the

children might not be sent to the church schools if the

parents were compelled to pay their children’s bus

fares out of their own pockets when transportation to

a public school would have been paid for by the State.”

Everson, 330 U.S. at 17. While Justice Black stopped

far short of mandating that parents be able to receive

the same return on their tax dollar whether their chil-

dren attend public or sectarian schools, his opinion is

sensitive to the concerns of those who, while required

to fund public education, feel compelled by their con-

sciences to look elsewhere for their own children. For

Montana to legislate to correct this disparity does not

approach the borders of the Establishment Clause.

Mueller v. Allen, 463 U.S. 388, 402 (1983).

8

B. Montana’s Denial of Tax Credit Benefits

Falls Outside the “Play in the Joints” Be-

tween the Free Exercise and Equal Pro-

tection Clauses

In Walz, the Court admitted that the religion

clauses on their face “are not the most precisely drawn

portions of the Constitution” and that “expanded to a

logical extreme, [one] would tend to clash with the

other.” 397 U.S. at 668–69. Too rigid an application of

either clause could defeat “the basic purpose of these

provisions, which is to ensure that no religion be spon-

sored or favored, none commanded, and none inhib-

ited.” Id. at 669. And while the Court “will not tolerate

either governmentally established religion or govern-

mental interference with religion,” that leaves sub-

stantial “room for play in the joints productive of a be-

nevolent neutrality which will permit religious exer-

cise to exist without sponsorship and without interfer-

ence.” Id. (emphasis added). That “play in the joints”

is an area for good-faith balancing of establishment

and free-exercise concerns, not an invitation to inter-

fere with small and neutral education tax credits.

In Locke, the Court examined how far a state can

go in distancing itself from religion when not obligated

by the Establishment Clause. 540 U.S. at 719. Stu-

dents of devotional theology—presumed to be training

to proselytize their religion—were justifiably excluded

from state scholarship programs in accordance with

the Washington constitution. Such education consti-

tuted an “essentially religious endeavor” and was

therefore not “fungible” with secular education for

free-exercise purposes. Id. at 721–22.

9

The history that informed the court in Locke is a

singular and fractious one. The compulsory mainte-

nance of town ministers was a common feature of life

in the Thirteen Colonies in the 17th and 18th century

and a core component of the kind of “establishment”

against which the Framers reacted. Gradually, by the

time of the American Revolution, attempts by the

Crown to replace majority-elected ministers with An-

glican uniformity had given way in many colonies to

systems in which colonists could direct their manda-

tory tithe to a minister of their choice. This was true

so long as the minister was of a recognized Protestant

denomination, possessed clerical training, and had a

non-negligible number of adherents within the com-

munity. R. Freeman Butts, The American Tradition in

Religious Education 30–37 (1950). The form of estab-

lishment with which the drafters of the First Amend-

ment were most familiar, therefore, involved a rela-

tively high degree of individual choice where the fund-

ing of ministers by the community was concerned. The

Establishment Clause, and its parallels in many early

state constitutions, demonstrate that compulsion in

this regard was regarded as anathema to the values of

the fledgling republic. While the “play in the joints”

would still be strong enough to allow for the funding of

theology students out of neutral scholarship programs,

the Court in Locke clearly had special historical rea-

sons to conclude that their exclusion did not violate the

Free Exercise Clause.

Respondents argue that Locke “upheld Washing-

ton’s denial of indirect aid to religious education not-

withstanding the same program’s availability to stu-

dents pursuing non-religious training.” Br. in Opp’n at

43. But this characterization overlooks the fact that

10

the provision in Locke was interpreted far more nar-

rowly than § 6 here. Locke dealt with targeted clerical

training as opposed to any education provided by reli-

gious institutions. 540 U.S. at 716. Whatever comfort

devout parents may take in the religious setting of

their children’s schooling, the goal of a general paro-

chial education remains to prepare students for a life

in the world. While religious teachers might value

their pedagogical mission, a church without a school

remains a church. Scholarships for parochial school

students, in other words, do not serve an “essentially

religious purpose.” Moreover, Montana’s tax credits

left the beneficiary free to donate to religious or secu-

lar organizations. Unlike in Locke, and unlike the co-

lonial establishments, the Tax Credit Program estab-

lished at best a passive and indirect aid to religion.

For all the same reasons that such indirect benefits

have passed muster under the Establishment Clause,

the withholding of funds from religious schools falls

outside the “play in the joints” and within the prohib-

ited sphere of the Free Exercise Clause. Allowing tax-

payers, who are already forced to support secular pub-

lic schools, to avoid taxation on small amounts of

money which they have used to support private schol-

arship funds raises no specter of religious establish-

ment. Like “passive and symbolic” religious symbols

on public land, which are “unlikely to present a realis-

tic risk of establishment,” Cty. of Allegheny, 492 U.S. at

662 (Kennedy, J., concurring in judgment), striking

down a wholly passive and indirect benefit goes be-

yond what the Establishment Clause requires and the

Free Exercise Clause allows.

11

In Trinity Lutheran, Missouri’s Blaine Amendment

did not prevent a church from benefiting from a gener-

ally available playground-resurfacing program. In dis-

tinguishing Locke, the Court described the facts of the

earlier case: “Davey was not denied a scholarship be-

cause of who he was; he was denied a scholarship be-

cause of what he proposed to do—use the funds to pre-

pare for the ministry. Here there is no question that

Trinity Lutheran was denied a grant simply because

of what it is—a church.” 137 S. Ct. at 2022. Stating

this principle in terms of intent, the Court reiterated

that “[w]e have been careful to distinguish such [neu-

tral] laws from those that single out the religious for

disfavored treatment.” Id. at 2015.

Respondents attempt to distinguish this case from

Trinity Lutheran by highlighting the religious intent

of many credit recipients in guiding their children’s ed-

ucation. Br. in Opp’n at 45. Section 6, however, could

have been narrowly written to target the action of re-

ligious instruction or other essentially religious func-

tions but instead targeted recipients based on religious

status, keeping this case within the ambit of Trinity

Lutheran. Nor were tax credit recipients exercising

delegated state authority as in Bd. of Educ. v. Grumet,

512 U.S. 687 (1994), but directing their own money

that they were allowed to keep.

As for parental intent, “[t]he fact that a state law,

passed to satisfy a public need, coincides with the per-

sonal desires of the individuals most directly affected

is certainly an inadequate reason for us to say that a

legislature has erroneously appraised the public

need.” Everson, 330 U.S. at 6.

Accordingly, the permissible “play in the joints” as

it applies to monetary aid to religious education is as

12

follows: A state may allow tax-collected funds to be

spent as compensation for privately chosen aid to an

essentially religious institution. Remove the element

of religious purpose, as in Trinity Lutheran, and reli-

gious exclusion becomes religious discrimination. The

Montana Supreme Court went too far.

II. CHOICE PROGRAMS ALLEVIATE, NOT

EXACERBATE, RELIGIOUS CONFLICTS

A common concern about school choice programs

that they it will split society into isolated—and poten-

tially warring—factions along religious lines. This

thinking is predicated on the assumption that educa-

tion can be religiously neutral, treating Americans

across the spectrum of religious belief—from none to

nuns—equally and without entanglement in religious

matters. But this is impossible.

As Cato education-policy expert Neal McCluskey

has shown, religion is inextricably entangled with ed-

ucation on numerous levels, from the very broad to the

very specific. Neal McCluskey, “Toward Conceptual

and Concrete Understanding of the Impossibility of

Religiously Neutral Public Schooling,” 12 J. Sch.

Choice 477 (2018). For instance, for some people noth-

ing in life is separable from God. For others, while not

everything is of intrinsic religious import, education

is—as it involves the shaping of minds and, inevitably,

souls. As one scholar wrote, “If education is in any

sense a preparation for life, then its concern is reli-

gious. If education is at all concerned with truth, it is

again religious. If education is vocational, then it deals

with calling, a basically religious concept,” Rousas

John Rushdoony, The Messianic Character of Ameri-

can Education 315 (1963). Given the prevalence of

13

such beliefs, for much of American history public

schooling was overtly religious. John W. Meyer, David

Tyack, Joane Nagel & Audri Gordon, “Public Educa-

tion as Nation-Building in America: Enrollments and

Bureaucratization in the American States: 1870-

1930,” 85 Am. J. Soc. 591 (1979). Education divorced

from religious directives about behavior, or without re-

ligious interpretations of history, is incomplete, and

for some constitutes the imposition of a humanist—a

human, rather than God-centered—world view.

Many courses and policies cannot be divorced from

religious considerations, especially if morality stems

from religion, as many Americans believe. As of July

2017, 42 percent of Americans agreed that “it is neces-

sary to believe in God in order to be moral and have

good values.” Gregory A. Smith, “A Growing Share of

Americans Say It’s Not Necessary to Believe in God to

Be Moral,” Pew Research Center, Oct. 16, 2017,

https://pewrsr.ch/2TXILQ0. Religious beliefs are heav-

ily implicated in topics including the teaching of the

origins of life, sex education, policies concerning stu-

dent choices of bathroom and locker rooms,2 and spe-

cific readings, including those touching on morals.3 See

2 A recent amicus brief from Catholic, Jewish, Lutheran, and

other religious groups supporting a challenge to an interpretation

of “sex” to include gender identity noted that nine religious tradi-

tions hold “that personal identity as male or female is a divinely

created and immutable characteristic.” Br. of Major Relig. Org.’s

as Amici Curiae Supp. Pet’r., Gloucester County School Board v.

G.G., 137 S. Ct. 1239 (2017) (No. 16-273) (vacated).

3 Many books repeatedly challenged in public libraries, including

school libraries, are challenged over content some consider to be

immoral. Of the Top 11 books on the most recent annual Ameri-

can Library Association list of most frequently challenged books,

nine were challenged at least in part for sexual material some felt

14

Edwards v. Aguillard, 482 U.S. 578 (1987); Kitzmiller

v. Dover Area School Dist., 400 F. Supp. 2d 707 (M.D.

Pa. 2005); see also Austin Ruse, “Horrific Sex Ed Cur-

riculum Is Taking Over in This Virginia County, and

Objectors Are Getting Steamrolled,” Daily Signal, Feb.

15, 2018, https://dailysign.al/2IrSVpQ; Joan Frawley

Desmond, “Sex Education in California Sparks Cul-

ture Clash,” Nat’l Catholic Register, Apr. 28, 2017,

https://bit.ly/2X2MehW.

The effect of this dynamic within public schooling

is to force people into political conflict over which val-

ues will be imposed on all students. By making diverse

people pay for a single system of schools, public school-

ing appears to do what Justice Stevens feared from

school choice: create conflict, as one observes histori-

cally “in the Balkans, Northern Ireland, and the Mid-

dle East,” Zelman, 536 U.S. at 686 (Stevens, J., dis-

senting). History is littered with public schooling bat-

tles both political and, occasionally, physical. Horace

Mann, the “Father of the Common school,” faced sig-

nificant religious opposition to his efforts to create

common schools as people of various Protestant sects

feared their beliefs would be slighted. See Charles L.

Glenn Jr., The Myth of the Common School 146–235

(1987). In his last report as Massachusetts education

secretary, Mann defended against accusations he

would have the Bible, of which there were many inter-

pretations, removed from schools. Mann stated, “The

Bible is the acknowledged expositor of Christianity. In

strictness, Christianity has no other authoritative ex-

pounder. The Bible is in our common schools by com-

mon consent.” Report for 1848, in Life and Works of

immoral or age-inappropriate. State of America’s Libraries 2019,

Am. Library Ass’n, Mar. 24, 2019, https://bit.ly/2GcYcA3.

15

Horace Mann 734 (Mary Mann, ed.,1868). In 1844,

neighborhoods around Philadelphia saw massive prop-

erty destruction and multiple deaths in “Bible Riots”

touched off by disputes over whose version of the Bi-

ble—Protestant or Roman Catholic—would be used in

the public schools. Vincent P. Lannie & Bernard C. Di-

ethorn, For the Honor and the Glory of God: The Phil-

adelphia Bible Riots of 1840, 8 Hist. of Educ. Q. 44

(1968).4 In Kanawha County, West Virginia, one per-

son was shot and district property bombed in the 1974

“Textbook War,” fought over books adopted by the

school board to which many parents objected on reli-

gious and other grounds. David Skinner, “A Battle

Over Books,” Humanities, Sept./Oct. 2010,

https://bit.ly/2G7UgPN.

Today, overtly religious conflicts are commonplace,

as well as many conflicts about moral values that may

well be religion-based but not expressly so. Cato’s Pub-

lic Schooling Battle Map, an online database of values-

and identity-based conflicts in public schools, con-

tained 2,189 entries as of Sept. 13, 2019. Cato Inst.,

Public Schooling Battle Map, https://www.cato.org/ed-

ucation-fight-map. The map contains conflicts that ap-

peared in media stories since 2005, with regular col-

lection starting around 2011. Because it contains only

battles that received media attention, it almost cer-

tainly understates the number of conflicts. Of the

2,189 entries, 336 explicitly involve religion, such as

Bible study, prayer, posting “In God We Trust,” and

“mindfulness” yoga. Barry Amundson, “ACLU: Bill Re-

quiring North Dakota Schools to Offer Bible Course

‘Blatantly Unconstitutional,'” Grand Forks Herald,

Jan. 9, 2019, https://bit.ly/2UsVBuC; Brittani Howell,

4 The title date was corrected to “1844” in the subsequent issue.

16

“R-BB Superintendent’s Prayer Letter Raises Con-

cerns,” Hoosier Times Online, Feb. 6, 2019,

https://bit.ly/2IeyNs2; Dave Perozek, “’In God We

Trust’ Signs Going Up in Schools,” Arkansas Democrat

and Gazette, Mar. 4, 2018, https://bit.ly/2IsqGaH; Su-

san Parker, “Yoga and ‘Unholy Spirit’? School Program

Draws Christians’ Ire,” Delmarva Now, Apr. 27, 2018,

https://bit.ly/2UbhA4b. Of those conflicts, 200 center

on moral, but not explicitly religious, concerns, and 62

deal with “human origins,” which can include religious

explanations for the origins of life, but also ones not

explicitly religious, such as intelligent-design theory.

The Battle Map contains 19 entries for Montana,

including over bathroom access, a school trip to a cre-

ationist museum, and school choirs singing at a Lat-

ter-Day Saints event. Thom Bridge, “ACLU Sues to

Block Ballot Initiative on Transgender Bathroom,

Locker Room Use,” Missoulian, Oct. 17, 2017,

https://bit.ly/2G7po21; Associated Press, “Montana

Third-Grader’s Field Trip to Creationist Museum Can-

celed over Legal Concerns,” Casper Star-Tribune, May

27, 2015, https://bit.ly/2D76tDS; Associated Press,

“ACLU Protests High School Choirs Singing In Church

Concert,” Dec. 5, 2013, https://cbsloc.al/2uXRx6f.

Allowing families—and funders—to choose schools

that share their values would abrogate the need to im-

pose one’s values on everyone else, improving the pro-

spects for social and political peace. There is historical

evidence of this occurring in other countries, including

the Netherlands and Belgium, both of which in the

19th century moved away from education systems in-

tended to impose one worldview to those based in fam-

ilies’ ability to choose schools that shared their reli-

gious and philosophical values. Charles L. Glenn, Jr.,

17

Contrasting Models of State and School: A Compara-

tive Historical Study of Parental Choice and State Con-

trol (2011); Robert Maranto & Dirk C. van Raemdonck,

“Letting Religion and Education Overlap,” Wall St. J.,

Jan. 8, 2015. In both cases, the intent—and result—

was an increase in social harmony.

CONCLUSION

Because the Montana Department of Revenue dis-

criminated against religious believers and failed to al-

low “play in the joints” between the First Amend-

ment’s Religion Clauses, this Court should reverse the

Montana Supreme Court.

Respectfully submitted,

September 17, 2019

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org